In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2293
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S AMUEL T. H ENZEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:11-cr-00011-001-TWP-KPF-1—Tanya Walton Pratt, Judge.
A RGUED JANUARY 25, 2012—D ECIDED F EBRUARY 17, 2012
Before B AUER, P OSNER and R OVNER, Circuit Judges.
B AUER, Circuit Judge. Samuel T. Henzel pleaded guilty to
traveling across state lines with the intent to engage
in illicit sexual conduct, 18 U.S.C. § 2423(b). He was
given a prison sentence of 135 months, which the
district court and the parties assumed to be above the
applicable Guidelines range. On appeal, Henzel chal-
lenges only the reasonableness of that sentence, arguing
that the district court did not give adequate reasons
for the variance. We disagree. Moreover, although the
2 No. 11-2293
point was overlooked by the parties, the district court
miscalculated the imprisonment range favorably to
Henzel, and the sentence imposed is actually within
the correctly calculated range. We affirm the judgment.
I. BACKGROUND
In October 2010, a 12-year-old girl called the police in
Westfield, Indiana, and reported that she had just left
a hotel where she was sexually assaulted by a man
named Sam. Police went to the hotel and found Henzel,
who fit the girl’s description of her attacker. He was
questioned by the police officers and confessed to
engaging in sexual activity with the girl.
Henzel, who lived in Oak Park, Illinois, explained to
the police that he and the girl had become acquainted
a month earlier through an Internet chat room fre-
quented by fans of online video games. He acknowl-
edged that she told him she was 12, but he had lied
about his age, first saying he was 14 and later saying
he was old enough to drive. In fact he was 29. The
Internet chats evolved into text messaging and phone
calls, and Henzel soon told the girl that he would travel
to Indiana to meet her. They intended to have sex,
Henzel insisted, but the girl told authorities that sexual
activity had not been discussed and instead they
planned to play video games. The girl was to ride her
bike the five miles from her home to the hotel, but when
she had difficulty covering the distance, she called
Henzel, who drove out to meet her. The two had not
exchanged photos before this, and Henzel acknowledged
No. 11-2293 3
to the police that the girl was shocked and nervous
when she first saw him on the street because he was so
much older than she had expected.
Henzel admitted during this confession that, when
he told the girl to get in his car, she at first had refused
and said she preferred to follow him to the hotel on
her bike. When she could not keep up, however, Henzel
had told her again to get in his car and said to leave
her bike by the roadside. He drove her to the hotel
where, by Henzel’s admission, she told him that she
was unsure whether she wanted to have sex. According
to Henzel, the two “ended up going to bed.” He admitted
engaging in sexual activity and also corroborated the
girl’s statement to police that she had been given
marijuana and alcohol. When the officers told Henzel
that the girl had reported feeling forced to perform
sexual acts against her will, Henzel said that he under-
stood why she felt that way but that was not his intention.
In her interviews with authorities and her testi-
mony at the sentencing hearing, the girl filled in the
details omitted by Henzel. When she first saw him and
realized his true age, the girl said, the situation had
been scary. Although frightened, she did as she was
told and tried following him to the hotel on her bike
because she “felt like maybe he had something with
him if I didn’t try to go.” When after a few minutes she
stopped her bike and began crying, Henzel pulled up
and told her to get in his car. Once they were in the
hotel room, Henzel began stroking her arm. She told
him not to try “anything he knows he’s not supposed to
be doing,” and Henzel said he would not.
4 No. 11-2293
They then played a video game for five to ten minutes,
but when the girl paused to select a different game,
Henzel had slapped her on the buttocks. By then she
“felt really, really badly uncomfortable,” though she
had kept quiet and decided to “try to get out” by pre-
tending to be tired. She curled up on the bed and told
Henzel she was tired and didn’t want to do anything.
He responded by saying she was only acting and
resumed touching her arm. The girl left the bedroom
and sat on the couch in the other room of the
two-room suite, but Henzel followed. He gave her a
beverage mixed with alcohol and handed her marijuana
in a glass pipe, directing her to drink the alcohol
and smoke the marijuana. He blew marijuana smoke
directly into the girl’s mouth. She then went back into
the bedroom to avoid him.
Once more Henzel followed. The girl sat on the bed
with her knees up to her chin, and Henzel began to kiss
and undress her. She wanted to tell him to stop yet re-
mained quiet because she was “really scared.” She
crossed her legs to stop Henzel from removing her
pants, and told him that she felt uncomfortable. Henzel
responded that he would not hurt her, but continued
to remove her clothes. When he removed her under-
wear, the girl began to whimper. Henzel told her they
were going to have sex, and she answered that she
did not want to have sex with him. Henzel pressed on
anyway and engaged in oral sex with her for about
three minutes. He then attempted vaginal sex, and the
girl whimpered loudly from the pain. Henzel paused,
and the girl said she had to leave. He replied that he
No. 11-2293 5
hadn’t “come all this way for just this to happen,” but
the girl dressed quickly and left the hotel. She immedi-
ately called her mother and then the police. The girl
testified that she felt scared and helpless with Henzel,
and that she told him at least ten times that she did not
want to do anything sexual, but he ignored her protests.
The probation officer who prepared the presentence
investigation report started with U.S.S.G. § 2G1.3, which
is the default Chapter 2 Guideline for violations of
18 U.S.C. § 2423(b). That Guideline provides for a base
offense level of 24 but also includes a cross-reference
to U.S.S.G. § 2A3.1 “[i]f the offense involved conduct
described in 18 U.S.C. § 2241 or § 2242.” See U.S.S.G.
§ 2G1.3(a)(4), (c)(3). Sections 2241 and 2242 both
involve causing another person to engage in a sexual
act. The former, denominated as “aggravated sexual
abuse,” includes as an element the use of force or a
threat of death, serious bodily injury, or kidnapping. 18
U.S.C. § 2241(a). The latter, denominated simply as
“sexual abuse,” does not require evidence of force or
the type of serious threat associated with § 2241; rather,
the offense is committed “by threatening or placing that
other person in fear (other than by threatening or
placing that other person in fear . . . [of] death, serious
bodily injury, or kidnapping).” Id. § 2242(1).
The probation officer concluded that Henzel’s crime
“involved conduct described in 18 U.S.C. § 2241(a) or (b)”
and thus applied the cross-reference to § 2A3.1. Under
that Guideline, the base offense level for a violation
of § 2241 is 30 if the victim was 12 or older, and 38 if
6 No. 11-2293
younger. U.S.S.G. § 2A3.1(a)(1), (2). In cases where
the victim was at least 12 years old, 4 levels are added
if the defendant’s actions violated § 2241, 2 levels are
added if the victim was under 16, and 2 levels are
added if a computer was used to entice the minor. Id.
§ 2A3.1(b)(1), (2), (6). The probation officer reasoned
that Henzel had committed a violation of § 2241 against
a 12-year-old, and thus calculated a total offense level
of 35 (a base offense level of 30; upward adjustments
of 4 levels for violating § 2241, another 2 levels due to
the girl’s age, and 2 more for use of a computer; less
3 levels for acceptance of responsibility). The level 35,
coupled with Henzel’s single criminal history point,
yielded a Guidelines imprisonment range of 168 to
210 months. Because the probation officer had con-
cluded that Henzel’s conduct constituted aggravated
sexual abuse in violation of § 2241, she did not
further analyze in the presentence report what the im-
prisonment range would be if Henzel’s conduct
instead met only the lower evidentiary threshold for
sexual abuse as defined in § 2242.
Henzel objected to the probation officer’s calculations.
He argued that he did not employ “force or threats”
leading to sexual contact, and thus the probation
officer had wrongly concluded that his actions con-
stituted conduct described in § 2241. It followed, he
insisted, that the cross-reference to § 2A3.1 did not ap-
ply. And under § 2G1.3, Henzel continued, his total of-
fense level would be 25, and his imprisonment range,
57 to 71 months. In his written objections, Henzel
asserted in a single sentence that he “did not engage in
No. 11-2293 7
any of the conduct described in” § 2241 or § 2242, and
his only reference to the statutory elements of the
latter implies that a violation occurs only if the victim’s
fear derives from threats. The government did not object
to the probation officer’s calculations, and the proba-
tion officer rejected Henzel’s objection with the ex-
planation that the cross-reference was “accurately ap-
plied.”
That same posture carried over to the sentencing
hearing. By then Henzel had changed counsel (to his
third and current lawyer), who argued that the
cross-reference could not apply because “absolutely no
force was used, no force was threatened by Mr. Henzel.”
As counsel put it, “I didn’t hear from her the testimony
that he had struck her; pinned her down to the bed by
the force of his body weight; kept her on the bed while
these things were happening; that he had threatened
to hurt her or her family.” But defense counsel did not
discuss § 2242, or its lesser requirement of a sexual act
induced by fear whether or not attributable to a threat
by the defendant. The prosecutor did draw the district
court’s attention to § 2242, “just . . . for the Court’s point
of view,” but insisted that “this was a forced sexual
encounter.”
Having heard testimony from the victim and a
detective who interviewed Henzel immediately after
his arrest, the district judge concluded that “the govern-
ment has not met the burden by a preponderance of
the evidence to allow the Court to give the cross refer-
ence” to § 2A3.1. The judge did not explain this conclu-
8 No. 11-2293
sion. The court then turned back to § 2G1.3 and applied
the base offense level of 24 found in subsection (a)(4).
To this the court added a total of 6 levels because
Henzel had misrepresented his age, used a computer,
and engaged in sexual acts with the girl, U.S.S.G.
§ 2G1.3(b)(2-4). After subtracting 3 levels for acceptance
of responsibility, id. § 3E1.1, the court reached a total
offense level of 27. With a criminal history category of I,
Henzel faced a Guidelines imprisonment range of 70 to
87 months.
Henzel’s attorney asked for the minimum period of
incarceration, noting that Henzel is aware that he has a
problem with attraction to young girls and is now
seeking help. Henzel apologized to the victim and her
family, and stated to the court that he never wants to
do anything like this again. The prosecutor argued, how-
ever, for a prison term of at least 120 months on the
ground that the Guidelines range of 70 to 87 months
“does not begin to capture what occurred here.” The
prosecutor stated that, although the district court
had found that Henzel did not use physical force
against the girl, he nevertheless gave a 12-year-old
child drugs and alcohol and pressured her to have sex
with him, despite her protests. The Guidelines, the pros-
ecutor argued, did not reflect these exacerbating circum-
stances.
The district court concluded that the nature and cir-
cumstances of the offense justified an above-Guidelines
sentence of 135 months. The judge gave several reasons
for the variance, stating that the victim, although not
No. 11-2293 9
subjected to physical force, “was certainly . . . seduced,
coerced, persuaded, and tricked to engage in these
elicit acts, in part due to her being an innocent
12 year old child.” The judge reminded that the child
had signaled her opposition by crossing her legs and
whimpering, and by telling Henzel directly ten or more
times that she did not want to have sex. The court
faulted Henzel for giving a child alcohol and marijuana,
and emphasized that he alone was responsible for
the sexual encounter. The judge added that Henzel is a
“selfish, self-gratifying individual” who with his sub-
stantial age advantage had been unconcerned that he
was inflicting “a great deal of pain on this child as
he satisfied his own sexual desires.”
II. DISCUSSION
On appeal, Henzel argues that his prison sentence of
135 months, which is 48 months above the upper end of
the range calculated by the district court, is unreason-
able. Henzel contends that the court’s reasons for
the variance simply describe general characteristics
applicable to all offenders convicted under 18 U.S.C.
§ 2423(b), and that the court failed to identify ag-
gravating factors sufficiently particularized to him
and his crime. Henzel also contends that the Sentencing
Guidelines already account for several of the reasons
cited by the district court to justify the above-Guidelines
sentence, including his misrepresentation of his age
and the reprehensible nature of the offense.
10 No. 11-2293
In our view, Henzel is able to lodge his reasonableness
challenge only because the district court, with the gov-
ernment’s acquiescence, understated the Guidelines
imprisonment range by not applying the cross-reference
to U.S.S.G. § 2A3.1. Like the probation officer and
defense counsel, the district court assumed that the
cross-reference applies only if the government can prove
that the defendant violated 18 U.S.C. § 2241 by em-
ploying physical force or threats of extreme harm. Es-
sentially, the participants at sentencing excised from
the cross-reference its inclusion of 18 U.S.C. § 2242 as
a basis for shifting from U.S.S.G. § 2G1.3 to § 2A3.1.
Yet the cross-reference expressly applies “[i]f the of-
fense involved conduct described in 18 U.S.C. § 2241 or
§ 2242,” U.S.S.G. § 2G1.3(c)(3) (emphasis added), and
the criminal conduct described in § 2242 is “caus[ing]
another person to engage in a sexual act by threatening
or placing that other person in fear,” 18 U.S.C. § 2242(1)
(emphasis added).
Here, the district court actually found that Henzel had
“coerced” the girl’s participation in oral and vaginal
sex despite her efforts to move away from him, her
crossed legs and resistance to his efforts to undress her,
her crying, and her ten or more protests that she
did not want to participate. The court reasoned that
Henzel had used their vast age difference and the child’s
vulnerability to manipulate her into these sexual acts.
The child testified that she was scared from the first
moment she saw Henzel and realized his age, that
she followed his order to enter his car because she
thought he might have a weapon, and that she was
No. 11-2293 11
scared throughout the entire encounter. Even Henzel
admitted that the girl looked “nervous and shocked”
upon seeing him, and he acknowledged to the police
officers that he could understand why the girl had said
she felt forced by him to have sex.
In the § 2242 context we define the concept of “fear”
broadly and as distinct from “force,” see United States v.
Boyles, 57 F.3d 535, 544 (7th Cir. 1995), and it is apparent
from the accounts of events given not only by the girl
but also Henzel that the child’s “will to resist” was over-
come by his “mental and emotional power,” id.; see
also United States v. Holly, 488 F.3d 1298, 1304 (10th
Cir. 2007) (“A defendant commits sexual abuse if he
places the victim in fear, but commits aggravated sexual
abuse only if that fear rises to the level of fear of
death, serious bodily injury, or kidnapping.”); United
States v. Lucas, 157 F.3d 998, 1002-03 (5th Cir. 1998) (ex-
plaining that, for purposes of § 2242, fear has “very
broad” definition and can be “inferred from the circum-
stances, particularly a disparity in power between de-
fendant and victim”); United States v. Johns, 15 F.3d 740,
743 (8th Cir. 1994) (explaining that § 2242 envisions
lesser degree of fear than § 2241). On similar facts, the
Ninth Circuit upheld the conviction of a 28-year-old
man who engaged in sexual contact with a 13-year-old
girl, after inviting her and a friend to go for a ride in
his truck and share a pizza. United States v. Gavin, 959
F.2d 788, 789-90 (9th Cir. 1992). The defendant plied
the girls with wine, and after her friend had exited the
truck to locate another girl, the defendant drove off
with the victim, parked, and began fondling her despite
12 No. 11-2293
her repeated protests. Id. at 790. Although he did not
threaten the girl with harm, the jury found that he did
place her in fear, and on appeal the court rejected
his contention that § 2242 is unconstitutionally vague
because it does not define “fear.” Id. at 790-91. The evi-
dence here suggests that the girl feared, as Henzel
said when she gathered her clothes and escaped from
his room, that he hadn’t “come all this way for just this
to happen” and would react badly if she did not meet
his demands.
Although the district court failed to apply the cross-
reference to § 2A3.1, the judge still cited the above
factors to justify the 135-month sentence, all of which
are relevant to whether Henzel overcame the child’s
will by fear. Had the court applied the cross-reference,
the judge would have started with a base offense level
of 30, added 2 levels for the girl’s age and 2 more for
Henzel’s use of a computer, U.S.S.G. § 2A3.1(a)(2), (b)(2),
(b)(6), and subtracted 3 levels for acceptance of responsi-
bility, id. § 3E1.1, for a total offense level of 31. The ap-
plicable imprisonment range would have been 108 to
135 months, U.S.S.G. ch. 5, pt. A (Sentencing Table),
meaning that Henzel’s 135-month sentence would be
within the range and presumed reasonable. See Rita v.
United States, 551 U.S. 338, 350-51 (2007); United States
v. Barnes, 660 F.3d 1000, 1010 (7th Cir. 2011).
The government has not cross-appealed, however,
and in its brief, neither did it defend against Henzel’s
appeal on the basis that the district court should have
applied the cross-reference to § 2A3.1. At oral argument,
No. 11-2293 13
the prosecutor conceded that not asking the district
court to apply the cross-reference based on conduct that
violates 18 U.S.C. § 2242 was a mistake. Thus, we are
presented with an avoidable debate about the reason-
ableness of a prison term that, in reality, is probably
exactly what the Sentencing Commission intended. Still,
even if viewed as above the range, the term is not unrea-
sonable. Sentencing courts must apply the factors from
18 U.S.C. § 3553(a) to the particular facts of each
individual case. See 18 U.S.C. § 3553(a)(2)(A), (a)(2)(B);
Gall v. United States, 552 U.S. 38, 49-50 (2007); United
States v. Hill, 645 F.3d 900, 911 (7th Cir. 2011); United States
v. Jackson, 547 F.3d 786, 792-93 (7th Cir. 2008). Courts
consider circumstances that are not shared by everyone
who commits the particular crime, and that increase
or lessen the severity of the individual offense. United
States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008).
Henzel argues that his sentence is unreasonable and
relies on United States v. Miller, where we remanded
for resentencing because the district court attempted to
justify an above-Guidelines sentence by speculating
that sex offenders, including the defendant in that case,
have a high rate of recidivism and are difficult to deter.
601 F.3d 734, 739 (7th Cir. 2010). We concluded that
the judge’s statements in Miller were not supported by
reliable evidence and, even if true, would apply to all
sex offenders. Id. On the other hand, we affirmed a dis-
trict court’s above-Guidelines sentence in United States
v. Jordan because the judge detailed ten particularized,
aggravating circumstances that are not common to all
offenders under 18 U.S.C. § 2423(b). 435 F.3d 693, 697
14 No. 11-2293
(7th Cir. 2006). These factors included the manipulation
of a young girl to engage in a sexual relationship, the
trauma suffered by her family, and the defendant’s pos-
session of child pornography. Id.
The district court’s reasons for giving Henzel an above-
Guidelines sentence are, like the judge’s reasons in
Jordan, sufficiently particularized to him and his offense.
The court concluded that the Guidelines range does not
reflect several exacerbating circumstances, including
that Henzel directed a 12-year-old to ingest drugs and
alcohol, and coerced her into sexual activity despite
her obvious fear and repeated protests. These factors
led the judge to characterize the offense as serious
and reprehensible, see Jordan, 435 F.3d at 697. The
judge also considered Henzel’s personal history and
characteristics, see 18 U.S.C. § 3553(a)(1), including his
selfishness, immaturity, and failure to grasp the conse-
quences of his actions, see Jordan, 435 F.3d at 697-98.
The judge acknowledged that Henzel recognizes his
problem and is now seeking treatment but concluded
that this was outweighed by the other exacerbating
factors, see, e.g., Hill, 645 F.3d at 912. Accordingly, the
increase in sentence is adequately explained, and
the degree of variance sufficiently justified.
III. CONCLUSION
For the reasons stated herein, we A FFIRM Henzel’s
sentence.
2-17-12